Iowa’s near-total abortion ban remains blocked by court order. But new details emerged last week about how some provisions might be enforced if the Iowa Supreme Court finds the law constitutional (as the state has requested), or lifts the temporary injunction on the ban while litigation proceeds.
One thing is clear: despite repeated references to “standard medical practice” in the document the Iowa Board of Medicine considered on November 17, the proposed abortion rules bear little resemblance to how physicians actually care for patients seeking an abortion.
MEDICAL PROFESSIONALS DIDN’T DRAFT ABORTION RULES
House File 732 would ban nearly all abortions in Iowa after embryonic cardiac activity could be detected. Republican lawmakers approved the bill during a special legislative session on July 11, and Governor Kim Reynolds signed it into law on July 14.
A Polk County District Court issued a temporary injunction three days later, blocking enforcement of all the law’s provisions, except the section directing the Iowa Board of Medicine to adopt rules related to the new abortion restrictions and exceptions. “Should the injunction entered today ultimately be dissolved,” Judge Joseph Seidlin wrote, “it would only benefit all involved, patients and providers alike, to have rules in place to administer the law.”
The Board of Medicine members—who are mostly physicians—did not draft the document discussed during the board’s November 17 meeting. Rather, Chief Deputy Attorney General Leif Olson explained, staff from the Iowa Board of Medicine, the Iowa Attorney General’s Office, the Iowa Department of Health and Human Services, and the Iowa Department of Inspections, Appeals and Licensing collaborated on the wording. It closely tracks the political—and not medical—language of House File 732.
Following the board’s vote to notice the abortion rules, the document will be published in the state’s next administrative bulletin, which will open a public comment period running from December 13 until January 2.
Conveniently for those seeking to implement an unpopular policy, the window for public comments will be open during the busiest part of the holiday season, when many people are less engaged with political news.
Staff will compile the public comments for the Board of Medicine to review before members vote on a final set of rules during their meeting in mid-January. The board’s executive director Dennis Tibben confirmed members will have an opportunity to amend the abortion rules before adopting them. If they make any “substantial” changes, another notice and public comment period would follow before final adoption.
The governor or the Iowa legislature’s Administrative Rules Review Committee can object to rules adopted by a state agency, but that’s unlikely to occur unless the Board of Medicine significantly changes the document in January.
TERMS NOT CONSISTENT WITH MEDICAL PRACTICE
The rules purport to establish “the standards of practice for physicians who perform or induce abortions.” But like House File 732 itself, they are full of terms not used in mainstream medicine.
“Fetal heartbeat” itself is a misnomer. Ultrasound can often detect electrical impulses beginning around the sixth week of pregnancy, but an embryo becomes a fetus at approximately eight weeks, and the heart doesn’t develop until around ten weeks. According to the American College of Obstetricians and Gynecologists, “Until the chambers of the heart have been developed, it is not accurate to characterize the embryo or fetus’s cardiac development as a heartbeat.”
The rules repeatedly mention the “unborn child” where medical practitioners would use the terms embryo or fetus. They consistently refer to a “pregnant woman,” even though people who are not legally adults can become pregnant. The incest and rape exceptions in particular would apply to many children under age 18.
Dr. Deborah Ann Turner, a retired OB/GYN, noted during the public comment portion of the Board of Medicine’s meeting that terms like “heartbeat law” and “unborn child” are “words used to evoke emotion, not to describe medical situations.” Turner previously worked at Planned Parenthood North Central States and also testified against House File 732 at the legislature’s one-day session in July.
When a board member asked whether the board could put different language into the rules, such as “female” rather than “woman,” or “fetus” instead of “unborn child,” Olson said those words are “drawn directly from the statute,” which is why they were used in the administrative rules.
PROCEDURES NOT CONSISTENT WITH MEDICAL PRACTICE
The rules state, “’Standard medical practice’ means the degree of skill, care, and diligence that a physician of the same medical specialty would employ in like circumstances.” They also require that “A physician who intends to perform or induce an abortion must determine via abdominal ultrasound whether the woman is carrying an unborn child with a detectable fetal heartbeat.”
Again, the wording tracks House File 732, which stipulates,
In testing for a detectable fetal heartbeat, the physician shall perform an abdominal ultrasound, necessary to detect a fetal heartbeat according to standard medical practice and including the use of medical devices, as determined by standard medical practice and specified by rule of the board of medicine.
If you guessed abdominal ultrasounds reflect “standard medical practice” for physicians treating patients seeking an abortion, you would be wrong.
During the Iowa House floor debate on July 11, Democratic State Representative Megan Srinivas (an infectious disease doctor) questioned Republican State Representative Ann Meyer (a nurse) about this aspect of the bill. The clip is worth watching.
Srinivas wondered why the bill requires trans-abdominal ultrasound to determine whether any cardiac activity can be detected. That’s “not the standard of care in pregnancy. Why are we utilizing something that’s not the medical standard of care?”
Meyer said Republicans were reintroducing the bill as it was written in 2018, to give the Iowa Supreme Court “another chance to look at it.” (Reynolds called the special legislative session after the Iowa Supreme Court deadlocked over whether to reinstate the 2018 abortion ban.) Meyer acknowledged that trans-abdominal ultrasounds can produce different results, depending on factors such as whether the woman is thin or heavy.
Srinivas again wanted to know why the bill would insist on an imprecise technology. “When we find out that a new cancer drug works better than an older one, we don’t repeat the older one just because it was in the book five years ago. So why are we not going with the medical standard of care?”
Meyer replied, “We chose this in the bill.” Srinivas noted, “OK, so it’s good to know that this was not based on any medical standards of care.”
APPROACH TO “FETAL ABNORMALITY” NOT CONSISTENT WITH MEDICAL PRACTICE
House File 732 lays out several exceptions that would allow a physician to perform an abortion even after detecting cardiac activity. One of those reads, “The attending physician certifies that the fetus has a fetal abnormality that in the physician’s reasonable medical judgment is incompatible with life.”
A subsequent part of the bill clarifies that this exception doesn’t apply if “the probable postfertilization age […] of the unborn child is twenty or more weeks.” That’s because Iowa’s 20-week abortion ban, which has been in effect since 2017, has no exception for fetal anomalies—even though many serious problems in pregnancy are diagnosed through an ultrasound that may happen at 20 weeks or later.
The proposed administrative rules require doctors to put a signed certification in the woman’s medical records containing the following information:
The diagnosis of the abnormality;
The basis for the diagnosis, including the tests and procedures performed, the results of those tests and procedures, and why those results support the diagnosis; and
A description of why the abnormality is incompatible with life.
Doctors rarely deal in such absolutes. Some medical conditions cause certain death outside the womb. But what if an infant could survive for a few minutes, hours, or days after birth?
What if reasonable physicians could reach different conclusions about whether the abnormality is survivable? What if the condition is usually lethal, but might be survivable 5 percent or even 1 percent of the time?
Every OB/GYN has treated patients who faced that nightmare scenario during a much-wanted pregnancy. The standard of care is not to tell the patient to terminate or carry the fetus to term, but to support the patient’s informed decision.
Dr. Deborah Ann Turner described the language on abnormalities as “troubling.” She told the Board of Medicine the “overly cumbersome burden” of certifying such a diagnosis ensures physicians will rarely be able to perform an abortion for that reason.
HOW IOWA’S ABORTION RULES WOULD DEFINE RAPE AND INCEST
The proposed rules address two other exceptions to Iowa’s abortion ban: “The pregnancy is the result of a rape” reported within 45 days, and “The pregnancy is the result of incest” reported within 140 days.
During the Iowa House debate in July, Republican State Representative Shannon Lundgren said the law set different deadlines because incest victims may take longer to report. In fact, as some critics pointed out, most rape victims don’t report their assaults. Children who become pregnant after being sexually abused may not realize what happened to them is a crime, and may not know they are pregnant until long after the 45-day window. In many cases, the perpetrator is close to the victim but not a blood relative, so would not be subject to the incest exception.
The draft abortion rules appear to address that reality by defining incest in an unusual way:
The phrase “the pregnancy is the result of incest” means a circumstance in which a sex act occurs between closely related persons that involves a vaginal penetration that causes a pregnancy. The closely related persons must be related, either legitimately or illegitimately, as an ancestor, descendant, brother or sister of the whole or half blood, aunt, uncle, niece, or nephew. For purposes of this rule, a closely related person includes a stepparent, stepchild, or stepsibling, including siblings through adoption.
That passage fails to cover lots of people who may abuse a child, such as a neighbor, caregiver, coach, clergy, or parent’s intimate partner who is not a stepparent. But it does go beyond the Iowa Code chapter on incest, which says nothing about stepparents, adopted siblings, etc.
When I asked about the Board of Medicine’s authority to expand the definition of a criminal act in administrative rules, I received the following explanation from Diane McCool, a communications staffer for the Iowa Department of Inspections, Appeals, & Licensing:
The most succinct legal explanation for your question with respect to “incest” is that the Fetal Heartbeat Act is not a criminal statute and does not incorporate Iowa Code section 726.2. Supporting that interpretation is the fact that the Legislature also utilized language outside of the criminal statutory text with respect “rape,” utilizing “rape” instead of the statutory term “sexual assault[.]”
It’s true, Iowa Code does not define rape. When Democratic State Representative Brian Meyer pressed Lundgren on that point during the July debate, the Republican floor manager replied, “I think you know the definition of rape. […] Everyone in this room knows a definition of rape.”
Contrary to McCool’s response, which implies the abortion ban has nothing to do with criminal code, the state officials who drafted the administrative rules defined “rape” as conduct that could be prosecuted under Iowa Code sections on sexual abuse in the first, second, third, or fourth degrees.
Why do these details matter? Because the rules would force physicians to ask intrusive, medically irrelevant questions.
EXCEPTIONS “WOULD REQUIRE DOCTORS TO INTERROGATE THEIR PATIENTS”
As currently drafted, the rules say a physician “must gather the following information from the woman seeking an abortion” to determine whether the incest exception applies, adding, “This information shall be documented in the woman’s medical records.”
Did a sex act occur between the woman and a closely related person, meaning, either legitimately or illegitimately, an ancestor, descendant, brother or sister of the whole or half blood, aunt, uncle, niece, or nephew, including a stepparent, stepchild, or stepsibling to include an adopted sibling?
On what date did the act occur?
If initial reporting was to someone other than the physician who intends to perform or induce an abortion, on what date was the act reported to a law enforcement agency, public health agency, private health agency, or family physician?
Similarly, physicians “must gather the following information” from a patient seeking an abortion due to rape, and document the information in medical records.
On what date did the sex act that caused the pregnancy occur?
What was the age of the woman seeking an abortion at the time of that sex act?
Did the sex act constitute a rape?
Was the rape perpetrated against the woman seeking an abortion?
If initial reporting was to someone other than the physician who intends to perform or induce an abortion, the date the rape was reported to a law enforcement agency, public health agency, private health agency, or family physician?
The rules say physicians “may rely on the information as provided by the woman seeking the abortion upon a good-faith assessment that the person is being truthful.” It allows physicians to “require the woman seeking the abortion to sign a certification form attesting that the information she gave was true and accurate to the best of her understanding,” in case the patient recants later.
Nearly 100 Iowa physicians signed a letter written by four OB/GYNs, which the Des Moines Register published on November 16. Dr. Emily Boevers, Dr. Andrea Greiner, Dr. Jami Maxson, and Dr. Francesca Turner wrote that the Board of Medicine’s document “puts physicians in the position of interpreting complex legal scenarios and prevents us from providing the highest standard of patient care.”
This rule states that physicians must not only interpret the legal statutes regarding rape and incest but also ask for facts surrounding the timing of events such as the occurrence, the reporting, the individuals responsible and their familial relationship to the patient. None of this information is necessary to provide medical care and abortion. The attending physician “may require the woman seeking the abortion to sign a certification form attesting that the information she gave was true and accurate to the best of her understanding.” This certification is unethical, hostile and not required in any other area of medicine. These interactions will undermine the trust necessary for quality medical care. Furthermore, these mandates force victims of sexual assault to recount painful details of abuse, exacerbating traumatic experiences.
Dr. Francesca Turner read a similar statement out loud at the Board of Medicine’s November 17 meeting on behalf of Iowans for Health Liberty, a political action committee that she and her co-authors formed this summer.
During her remarks to the Board of Medicine, Dr. Deborah Ann Turner recalled treating pregnant patients as young as 11 years old. “These are girls—not women—who have been raped or are victims of incest. Many times they are not sure how they got pregnant. Most don’t know what it means to be pregnant.” To require these patients to give a specific date when a certain event happened “is unrealistic and traumatizing,” she said. Moreover, some patients may not be able to give consent or understand what consent means.
Connie Ryan, executive director of the Interfaith Alliance of Iowa, likewise flagged the problem of a child or developmentally disabled person who has been raped and cannot convey the relevant details. She told the board her organization opposes the rules—”we don’t believe that the doctor should be an investigator at all”—but if such rules are adopted, they should allow a parent or guardian to provide the necessary information to a physician.
One board member asked how physicians are supposed to document a rape. Can they just go by what the patient told them?
Chief Deputy Attorney General Olson confirmed the law “does require the doctor to make that determination” by “setting forth the information that the doctor must gather.” He said “it is up to the doctor to determine which questions to ask to get to the right answer,” adding that doctors know how to “elucidate information from a patient to get to the root of a problem”—in this case, why the woman is seeking an abortion.
One board member wanted to know about patients who were developmentally disabled, perhaps nonverbal and unable to give consent. Olson said that under Iowa law, sexual abuse in the third degree is “a sex act committed with a person who lacks the ability to consent to the act.” As such, it would be covered under the rape exception. Other Iowa statutes address powers of attorney and guardianship to speak for such patients, he said.
Even so, the guardian wouldn’t necessarily know all the details physicians are supposed to document in the medical file.
Democratic State Senator Janice Weiner denounced the proposed abortion rules in a statement released after the Board of Medicine meeting. “These rules would require doctors to interrogate their patients, retraumatizing women who have already undergone an incredibly traumatic experience,” she said. “A doctor’s job is to provide the highest standard of care—not to act like an investigator or think like a prosecutor.”
NO DETAILS ON DISCIPLINE
House File 732 does not impose criminal penalties for doctors, and Olson confirmed during the November 17 meeting that the Iowa Board of Medicine is the only body with authority to enforce the terms of the abortion ban.
How the board would punish doctors for various infractions is not clear. The draft rules say simply, “Failure to comply with this rule or the requirements of Iowa Code section 146E may constitute grounds for discipline.”
When one board member asked why discipline wasn’t further defined, Olson said the board’s existing administrative rules already spell out possible actions. (Those include suspending or revoking a medical license.)
The letter signed by nearly 100 physicians warned,
The lack of detail in this section imposes a heavy burden on obstetrician-gynecologists in Iowa, already a scarce group. Iowa ranks 50 out of 50 for the number of obstetrician-gynecologists per women of child-bearing age. These physicians face a vague threat of “Discipline,” which may derail a career spanning decades, remove a trusted physician from the care of hundreds of other patients, and further compromise an already scarce medical workforce.
Weiner argued in her November 17 statement, “Without meaningful guidance, the existential fear of license revocation will prevent doctors from providing necessary care to victims of rape or incest.”
NO DETAILS ON “MEDICAL EMERGENCY”
House File 732 allows abortions to be performed in cases of “medical emergency,” defined elsewhere in Iowa Code as follows:
“Medical emergency” means a situation in which an abortion is performed to preserve the life of the pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy, but not including psychological conditions, emotional conditions, familial conditions, or the woman’s age; or when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.
Note that “the woman’s age” cannot be considered a life-endangering physical condition, even though a young child who goes through pregnancy is at higher risk of suffering permanent damage to the pelvic floor. “Psychological conditions” also can’t be considered, even though suicide “is a leading cause of maternal mortality in the United States.”
The rules presented to the Board of Medicine do not further define “life-endangering physical condition caused by or arising from the pregnancy.” Nor do they spell out which conditions “create a serious risk of substantial and irreversible impairment of a major bodily function.” Hundreds of situations might fit the bill. But as seen in other states that have banned abortion, physicians and hospitals are often reluctant to perform abortions for patients perceived to be not sick enough.
Speaking on behalf of the state licensing agency, McCool told Bleeding Heartland the rules didn’t address this exception in keeping with the governor’s Executive Order 10 and “efforts to reduce redundancy in Iowa Administrative Code.” She pointed me to an existing Board of Medicine rule that refers to the same exemption. But that provides no clarity either; it merely states, “This rule shall not apply to abortions performed in a medical emergency, as provided in Iowa Code section 146A.1(2).”
Dr. Francesca Turner told the Board of Medicine members, “To be very clear, every patient in every pregnancy, regardless of age, medical history, fetal status, [or] psychological background, a pregnancy may be moments from becoming a life-threatening medical emergency.”
She went on: “Physicians in Iowa seek to promote beneficence and justice, not to withhold care while waiting for our patients to fully miscarry or their health to decline enough to qualify for treatment.”
What Dr. Turner described is in fact “standard medical practice”—as opposed to the rules that may soon be forced on Iowa doctors.
Appendix: Full text of draft administrative rules, which the Iowa Board of Medicine voted on November 17 to notice in the administrative bulletin